Omer v Minister for Immigration

[2020] FCCA 3493

FEDERAL CIRCUIT COURT OF AUSTRALIA

OMER v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3493

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for an Employer Nomination (Permanent) (Class EN) (Subclass 186) visa – where the applicant did not have an approved nomination at the time of the hearing before the Tribunal – no jurisdictional error made out – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.359A, 476

Migration Regulations 1994 (Cth), sch.2

Applicant: MOHAMMED OMER

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1467 of 2020

Judgment of: Judge Street

Hearing date: 21 December 2020

Date of Last Submission: 21 December 2020

Delivered at: Sydney

Delivered on: 21 December 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Ms K Evans, Sparke Helmore, Microsoft Teams

ORDERS

1. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 21 December 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1467 of 2020

MOHAMMED OMER

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 June 2020 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant an Employer Nomination (Permanent) (Class EN) (Subclass 186) visa (“the Visa”). 

2. The applicant did not have an approved nomination at the time of the hearing before the Tribunal. The approved nomination was an essential criteria for the grant of the Visa. 

3. The applicant is a citizen of India, and applied for the Visa in the Temporary Residence Transition stream on the basis of his position in a particular company. 

4. The Tribunal found that the applicant did not have an essential requirement in terms of cl 186.223(2) of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) and affirmed the decision under review. 

5. The grounds in these proceedings are as follows: 

   I, Mohammed Omer came to Australia in Sydney on 20 Febuary 2007 on a Student Visa. After completing 3years of my Australian studies along with i also did my 2. Masters in Science (Information Technologies) from Distance Education from an Indian university.

   I was sponsored / Hired as a Business Development Manager by PYTHON TECHNOLOGIES situated in Belmore, Sydney on 24 October 2013. After working in Python Tech for more than 2years, i applied for 186 visa (Employer Nomination Permanent Visa). The Department of Immigration refused my Application and then i have applied in AAT to review my visa refusal.

   On 09/06/2020 made a decision to not grant me Employer Nomination 186 permanent visa.

   As, i am not satisfied by the decision made by AA T wants to apply for review in Federal Court for a Fair trail.

   i have been in Australia for almost 13years now and have been an Law obeying citizen.

   My wife and my 3 kids are waiting in India from many years to get re-united with me here in Australia

   Its my humble request to the Federal court to please give me a Fair trial on the basis of Humanitarian Grounds.

   Thank You.

6. The matter was fixed today for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). 

7. Nothing said by the applicant identified any arguable case of relevant error by the Tribunal. 

8. The applicant was on notice of the want of an approved nomination from the Delegate’s decision. The Court accepts the first respondent’s submissions that the Tribunal conducted the review in accordance with its statutory requirements, and complied with its statutory obligations, including under s 359A of the Act by the sending of the letter dated 29 April 2020. The Tribunal took into account the applicant’s response but found that the nominated position was no longer available as his employer had closed the business. The Tribunal found the nomination by the sponsor had not been approved and that the applicant did not meet cl 186.223(2) of the Regulations.

9. The grounds in the applicant’s application, in substance, invite merits review, and do not identify any arguable case of relevant error. The Court is satisfied that the application does not raise an arguable case for the relief claimed. 

10. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules. 

I certify that the preceding ten (10) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 21 December 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 10 February 2021